Florida Anchoring Rights/Regulations
An Analysis As Of 2/12/09

I have no fear of passing along an inaccurate statement when I say there isn’t a hotter topic in the Floridian cruising community than the issue of anchoring rights and regulations. That is why we at the Salty Southeast Cruisers’ Net have been dedicated to passing along the best possible information on this controversy, at the earliest possible moment.

Last December, I was dismayed to receive several e-mails from those that attended the last FWC (Florida Fish and Wildlife Commission) public comment meeting in Key West, indicating that the requirement to establish a state approved mooring field BEFORE a municipality would be allowed to regulate anchorage, HAD BEEN DROPPED from the FWC’s draft language. By the way, the `draft language’ referred to here is part of an attempt by the FWC to establish consistent, statewide anchorage regulations, a worthy goal indeed.

I attempted to verify the accuracy of these e-mails by contacting a person who was (and is) intimately involved with all marine related issues within the Florida legislature. I was told that while this person was not fully familiar with the most recent changes in the draft FWC language, it did appear as if the new version would allow municipalities to once again enact any anchorage regulations they so chose.

It looked to me very much like this change in the draft language heralded a return to the `bad old days’ of hap-hazard and hap-hazardly enforced local anchorage regulations throughout Florida. So, I sent out a special alert, and just a week or so ago, I reiterated my unhappiness within another alert, this one concerning the city of Marco Island’s denied appeal. Soon thereafter, I received the following e-mail from Captain Mark Leslie, dockmaster at Titusville City Marina:

Subject: Local Anchoring Ordinances
Cruising News: While the mooring field/right to regulate thing has been removed, the prohibition of local ordinances remains as it was when Marco v. Dumas took place. See line 162 in draft seven; http://myfwc.com/boating/Docs/Boating2009.pdf
This is not to say this thing does not have some twists and turns ahead once it hits the legislature.
Mark Leslie

So, I followed the link in Captain Mark’s message above, and read line 162. Guess what! Mark is 100% right. Municipalities and counties ARE STILL NOT ALLOWED TO REGULATE ANCHORAGE IN THE LATEST DRAFT VERSION OF THE PROPOSED STATEWIDE ANCHORAGE REGULATIONS.

This was a very pleasant surprise for yours truly, but immediately I began to wonder about the confusion concerning these regulations. I fired off an e-mail to Captain Mark, and while waiting for his reply, telephoned Captain Herman Diebler on Marco Island. Herman is one of the princial movers behind SAMI’s (Sailing Association of Marco Island) effort to challenge local anchorage regulations on Marco.

Captain Herman told me that when  the FWC draft language changed, they too had wondered whether, under this new proposal, local governments would once again be free to enact any sort of anchorage regulations. So, one of their members queried Captain Alan Richard, perhaps `the’ prime mover’ in the FWC behind the effort to establish statewide anchorage policy. They received the following reply:

`They are already denied that authority. This legislation merely clarifies that prohibition so that local governments will be less likely to be confused by strident constituents advancing specious arguments.’
`For example, two weeks ago, Sarasota adopted an ordinance that provides, ‘˜vessels that moor or anchor for more than seventy-two (72) continuous hours will be presumed to be no longer in navigation.’ It was a similar provision (the presumption kicked in after 10 days rather than 72 hours) that cost the City of Stuart $5,000.00 in damages plus attorney’s fees, an apology, and a promise that the ordinance would not be enforced until it could be repealed. I have attached a copy of the complaint that was filed in Admiralty in the federal district court. The final order in the case (also attached) does not say much because the city settled the suit within a week after being served. Note, however, that the court retained jurisdiction in case it became necessary to enforce the terms of the parties’ settlement agreement.’
Alan
Captain Alan S. Richard
Assistant General Counsel
Fish & Wildlife Conservation Commission’

Well, this was GREAT news. I, and a whole lot of other people in the cruising community, had been confused by the changes in regards to mooring fields (more on that in a minute), but the provision denying local governments the right to regulate anchorage WAS AND IS, STILL IN PLACE!

Soon after this joyous clarification, I received the following reply from Titusville’s Captain Mark Leslie:

`As it stands currently, they are proposing to have maybe 4 -5 “test case” areas where they plan to study the notion of buffer zones, Titusville is being considered as one of those areas, if we ever get a permit for our proposed mooring field. Currently we’re wrestling with the Florida Department of Agriculture about clams. Sorry to diverge.’
`The test mooring field locations will have a certain area outside the mooring field where anchoring is somehow restricted–I’m not real clear on this. Perhaps a time limit, total prohibition, hybrid, or some other local methodology. This is aimed primarily at protecting those in the mooring field. Marina Jacks in Sarasota will be one to watch. Senator Bennet has taken a special interest in helping the owners create a significant buffer area around their facility. Ergo the buffer zone idea. I don’t know that I would be real comfortable being the first city to write a uniform citation for anchoring. Until this reaches the Courts in Admiralty, I really don’t think anyone knows where this will ultimately fall out.’
`Regarding the mooring field/right to regulate; the notion stemmed from discussions with several in the marine industry who felt that if a locality put forth the effort to install a managed mooring field and charge reasonable fees, that said locality would have greater authority to regulate anchoring in their locality. This was the 10 day vs. 120 day part of draft 1 (I think those were the numbers) at any rate that is now out with the exception of the test cases. And that is yet to be determined. If this is how it actually ends up, I hope it will be a process where the responsible boater is removed from the cross hairs of catch-all legislation. As a city guy who has dealt with his fair share of DV’s and, makes his living off of cruisers, I can tell you, this is a very tough line to draw.’
`I will also tell you, there is a move afoot to add language to make the permitting of a mooring field a diminimus exemption to the permitting process. In other words, the resource protection value/net benefit of mooring fields is significant enough to legitimize bypassing the permitting quagmire and get the moorings in the water. It took eight years to permit the expansion to the Boot Key Harbor facility. Boaters like to have the mooring field option and it’s hard to make an argument against them environmentally. `
Mark

Since receiving the above note from Captain Mark, I have discussed the new, statewide anchoring proposal with several others `in the know,’ and have reached the following conclusions.

1. As the draft regulations now stands, local and county governments ARE indeed still FORBIDDEN to regulate anchorage. As I said above, that’s the GOOD NEWS!

2. However, the draft language also proposes the establishment of several `test cases’ within the next several years. What are `test cases’ you may ask. Well, they are communities that establish a state of Florida approved mooring field, and are then allowed to PUT A BUFFER ZONE AROUND THESE MOORING FIELDS WHERE ANCHORAGE IS EITHER NOT ALLOWED, OR RESTRICTED IN SOME OTHER WAY.

3. THE DRAFT VERSION OF THE NEW, PROPOSED FWC REGULATIONS DOES `NOT’ TRY TO DEFINE HOW LARGE OR SMALL THESE BUFFER ZONES WILL BE!!! And that, dear friends, is where the next BIG fight over Florida anchoring rights is going to come! Sometime during 2009 the Florida legislature will have to grapple with the issue of buffer zones around moorings fields, and their size. MAKE NO MISTAKE ABOUT IT, THE OUTCOME OF THIS STRUGGLE WILL PROBABLY DETERMINE WHETHER MOST OF US CAN ANCHOR ANYWHERE WITHIN SIGHT OF A COASTAL COMMUNITY IN FLORIDA, OR NOT!

Now, `wait a minute Claiborne,’ you may be saying. `Isn’t that a bit sensational.’ Not at all. Here’s why.

The city government in Sarasota, Florida, which is almost surely going to be one of the `test cases,’ has just authorized a mooring field in front of their leased city marina (Marina Jacks), and when this field becomes active, they have warranted that anchoring will be ILLEGAL (for longer than 72 hours) anywhere else within Sarasota’s city limits. In spite of some e-mails I received after the Net’s announcement of this proposed mooring field to the contrary, this local prohibition would mean that anchoring would be restricted to 72 hours on something like 70% of Sarasota Bay!

Based on this plan, it’s easy to see how other communities in Florida could contrive to disallow anchoring almost entirely by defining their `buffer zone’ as including all the waters within their town limits. Of course, they would first have to establish a state approved mooring field, but once this task is accomplished, all of a sudden, a whole lot of Florida could become an anchoring forbidden (or restricted) zone.

After dispatching my last alert, several dozen of you e-mailed, and asked what you as individual cruisers could do, and to whom should you e-mail your views. Please be advised that the Salty Southeast Cruisers’ Net is in close touch with the pro-cruiser forces who regularly work with the Florida legislature. WHEN THE TIME ARRIVES, WE WILL SOUND THE TRUMPETS AS LOUDLY AS POSSIBLE, AND TELL YOU WHOM TO E-MAIL, such that the voice of the cruising community will be heard! THE YEAR 2009 IS GOING TO BE A CRITICAL ONE FOR FLORIDA ANCHORING RIGHTS/REGULATIONS, and all of us at the Salty Southeast Cruisers’ Net are absolutely dedicated to keeping the cruising community informed both as to the process, and as to how we can influence that process!

I know this has been a LONG article (you might want to use a bit of `Murine’ about now), but, believe it or else, I’m not finished yet. Within the next week, I will also publish an editorial on this same subject. You will be notified by another special alert when that article is available.

Claiborne S. Young
Salty Southeast Crusiers’ Net